Central Administrative Tribunal - Delhi
Shri Dinesh Kumar S/O Shri D C Jaloria vs Govt. Of Nct Of Delhi on 30 April, 2010
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.1605/2009 This the 30th day of April 2010 Honble Shri Shanker Raju, Member (J) Honble Dr. Veena Chhotray, Member (A) Shri Dinesh Kumar s/o Shri D C Jaloria r/o 5573/75 Raigarpur, Karol Bagh, New Delhi ..Applicant (By Advocate: Ms. Ritika Chawla for Shri Arun Bhardwaj) Versus 1. Govt. of NCT of Delhi Through its Chief Secretary Delhi Secretariat, IP Estate Delhi-54 2. The Principal Secretary cum Commissioner-Transport Govt. of NCT of Delhi 5/9 Underhill Road Delhi-54 ..Respondents (By Advocate: Shri Rishi Prakash) O R D E R
Shri Shanker Raju:
A Motor Vehicle Inspector (MVI) in Govt. of NCT of Delhi seeks, through this OA, amendment in the seniority list and consideration for promotion as MVI with effect from 1996.
2. Applicant, who has been enrolled as Driving Instructor (DI), preferred OA-668/1996 before the Tribunal, which was decided on 3.10.1997 and in the light of the fact that post of DI was not a feeder category for MVI and there were no promotional avenues based on one-man committee (Bansal Committee) and on a proposal, directions were given to take a decision at the earliest. Accordingly, when in 1994 a proposal to amend the rules to include DI as a feeder category for the post of MVI was taken but no amendment was carried out in the rules and directions in OA-668/1996 when not complied with led to filing of OA-1350/1998, which was dismissed on 5.8.1998 on the ground that the deliberations, which are internal discussion in the file, cannot be a substitute for a notification and as such it is open to the Government to change its views about the desirability of an amendment in the recruitment rules and no directions can be given to the respondents in a matter of Executive Policy.
3. Learned counsel for applicant states that having approved the rules, the Secretary (Services) has left with only formality of notification, which was notified only after five years, i.e., on 9.4.1999. As such the applicant, who was promoted as MVI in 2000, has been prejudiced, as DTIs, which is the feeder category to the post of MVI having been promoted earlier, stand senior to the applicant despite junior in service rendered in the feeder category. Accordingly, it is stated by learned counsel for applicant that applicants promotion on retrospectivity of the rules should be considered from 1996, as delay in framing of recruitment rules and notifying the same is not attributed to the applicant and is due to the fault of the respondents.
4. Learned counsel would also contend that there has to be a ratio for promotion to the post of MVI from DI and DTI and as next promotion as MVI is from the feeder category of MVI he looses the chance of early promotion.
5. On the other hand, learned counsel for respondents vehemently opposed the contentions and stated that as the applicant has earlier filed OA-668/1996, OA-2152/1996 and OA-1350/1998, the present cause of action is barred by the principle of res judicata.
6. On merits, it is stated that once the rules were notified in 1999, promotion in the lower grade as MVI cannot be antedated from 1996. It is further stated that the applicant has no valid legal claim.
7. We have carefully considered the rival contentions of the parties and perused the records.
8. As per trite law, chances of promotion do not give an indefeasible right to a government servant. What is bestowed as a fundamental right is consideration for promotion.
9. Statutory rules as per law unless provide retrospectivity have prospective application as per the decision of Apex Court in Secretary, A.P. Public Service Commission v. B. Swapna & others, (2005) 4 SCC 154. Moreover, in Nani Sha & others v. State of Arunachal Pradesh & others, 2007 (7) SCALE 521, it is ruled that retrospectivity has to be expressed. Accordingly, the rules, which have come into being in 1999, the contention of the applicant that the rules have been delayed, this issue has already been gone into by the Tribunal in OA-1350/1998 decided on 5.8.1998 and rejected. As such, the issue being finally adjudicated by the Tribunal cannot be re-opened.
10. As the applicant was promoted in 2000, the other feeder category before amendment of the rules, i.e, DTI having valid legal right of consideration for promotion and once promoted, the seniority in the category, which was not included in the feeder category for the post of MVI, the incumbents, like the applicant, cannot be bestowed upon the seniority. Since in the guise of challenge to the seniority list, which is common for MVI and HQI, applicant who was promoted later than others cannot be treated having been promoted as MVI from 1996. As such the seniority has been rightly granted to him from 11.12.2000, i.e., the date on which he was promoted regularly as MVI. In such view of the matter, we do not find any infirmity in the seniority list issued by the respondents, which is relevant for the purposes of further promotion of the common categories to the post of Motor Licensing Officer (MLO). Seniority not being a civil right when not established to have been infringed by the rules, there cannot be a challenge, as ruled by the Apex Court in State of U.P. & another v. Dinkar Sinha, 2008 (1) SCC (L&S) 38.
11. Resultantly, finding no valid legal claim, OA is dismissed without any order as to costs.
(Dr. Veena Chhotray ) ( Shanker Raju ) Member (A) Member (J) /sunil/